Summary
In Jones v. Sasser, 18 N.C. 452, this Court said that if one consideration is specified in the deed, and others referred to in general terms, it is competent to show them forth in evidence.
Summary of this case from Chesson v. PettijohnOpinion
(June Term, 1836.)
A person, who has title to a slave, will not be estopped, by reason of any concealment or misrepresentation of that title, from setting it up against one who claims as a volunteer.
The title to slaves cannot be transferred without consideration, by virtue of an estoppel, arising from the misrepresentations of the owner, as that would be in contravention of the act of 1806, ( Rev. ch. 701,) which requires gifts of slaves to be in writing; and an estoppel cannot be set up to defeat the statute.
Where a son, to whom the father had conveyed a slave by deed of gift, but retained the possession by permission of the son, was alleged to have stood by, while his father was making another voluntary disposition of his property, by deed, among all his children, and to have fraudulently concealed or misrepresented his title, it was held, that a private conversation, which occurred between the son and father, just before the execution of the latter deed, in which the father assured the son, that, by becoming a party to it, his right under the deed of gift would not be prejudiced, was admissible to show that the son himself was misled; and that it was, also, to prove how the father held the slave.
Where a specific consideration is set forth in a conveyance, and no others are referred to in general terms, none other than the specific one can be averred and proved. But if one consideration is specified, and others are referred to in general terms, it is competent to show them forth in evidence; and where the deed is wholly silent as to the consideration, proof of the actual consideration is admissible.
A mere trustee, who has no direct interest in the event of the suit, is competent to testify in that suit.
The doctrine of legal and equitable estoppels partially discussed by GASTON, Judge.
THIS was an action of DETINUE, for a negro slave named Sheppard, tried at Lenoir, on the last Circuit, before his Honor, Judge SAUNDERS.
The plaintiff claimed under a deed from his father, Arthur Jones, Senr. dated the 5th day of April, 1827. This deed purported to have been made for the consideration of natural love and affection, and also for the better maintenance and preferment of the plaintiff, and conveyed, besides the slave Sheppard, several other negroes, and land. It was admitted by the defendant, that the deed was perfectly fair and bona fide, and conveyed the slave in question to the plaintiff. But the defendant contended that the title of the plaintiff was transferred and extinguished, or that he was estopped to assert it, by certain deeds, which were executed subsequently thereto, to wit, on the 11th and 15th days of August, 1829, and by the conduct of the plaintiff, in relation to the execution of those deeds. The first of these deeds was executed by the father, Arthur Jones, Senr., his son, Arthur Jones, the plaintiff, and by the husbands of all his other children, who were daughters. It purported to be a division by the father, of his "estate" among his five children; and the several allotments were expressed to have been made by Sampson Lane, Micajah Cox, William Raiford, John Kennedy and John Wright, into equal shares. Among the negroes named in the different lots, were some of those included in the deed to the plaintiff, but the boy Sheppard was not mentioned in any of them. Certain conditions were annexed to the division, which were expressed to be as follows: — That his children should pay him annually what the commissioners who divided his property, should think sufficient to support him; and the property, which he had reserved for his own use during his life, and pay a note that he owed to one Saunders Smith; that they should keep up all his fences; pay the taxes on the negroes they should have in possession, and equally the taxes on all his lands. It was then provided, that the foregoing disposition of his property should continue in full force from year to year, or until a majority of the said commissioners should find it advisable "to alter or do away said agreement;" and the donor continued, "I further wish the above-named committee to divide my property, both real and personal, if I should not live to see the expiration of the said loan, which is to stand in full force until the 1st of January, 1831, and as much longer as said committee, or a majority, think it advisable, as above stated; all power resting, and forever to rest, in a majority of said committee." The second deed purported to be an indenture between Arthur Jones, Senr. and Sampson Lane, William Raiford, Micajah Cox, John Kennedy, and John Wright, as trustees for all the children of the said Arthur, and was executed by the father and all the trustees. It recited, that the said Arthur Jones, Senr., being incapable, from his age and infirmities, of attending to his estate and affairs as formerly, had agreed, for the advancement of his children, to make over his property to the above-named trustees, so that they should pay his debts, and afford him a maintenance; and in order to carry the said agreement into effect, and in consideration of the natural love and affection which he bore his children, and in further consideration of the "provisoes, covenants and agreements, hereinafter mentioned, by the said trustees of his said children, to be observed and performed," he gave, granted and assigned unto the said trustees, "all the property" which he then possessed, both real and personal. The trustees then covenanted for the payment of the debts and maintenance of the old man, during his life. The title of the property was to remain in the trustees during the life of the grantor, and they were authorised, during his life, to make loans of equal parts of his estate to each of his children, and at his death to make an equal division of all his property, both real and personal, to his children, as before mentioned. To the whole was annexed a proviso, that if the trustees should fail to pay his debts, or afford him a proper maintenance, the grantor should "take, repossess and enjoy all the premises thereby granted, as in his former estate."
The defendant then proved by some of the trustees, who were objected to, but received by the court, that after the execution of the deed of the 11th, to which the plaintiff was a party, and of the contents of which he was apprised, it was agreed between Arthur Jones, Senr. and the trustees, that a more perfect instrument than that deed should be prepared and executed, so as to vest the title to all the estate of Arthur the elder in the trustees, and that they were all to meet on the 15th of the same month, to have it executed, and to finish the division of the property which remained undivided on the 11th. It was further proved that the plaintiff had notice of this agreement; that he met the other parties on the day appointed, and was present when the instrument of that date was executed; and, upon hearing it read, approved of it. The defendant also proved by the trustees, that the slave Sheppard always remained in the possession of old Arthur Jones, (who claimed him as his own,) during his life; and that, when the slaves were about to be divided, and conveyed to the trustees, the plaintiff assisted in naming them, and, among others, mentioned Sheppard; and that this was in the presence of his father and the trustees: That Arthur Jones, the elder, previous to the execution of the deed of the 11th of August, and in the presence of the plaintiff, directed all his estate, real and personal, including Sheppard, to be conveyed to trustees; and that it was to be settled in them for the use and benefit of his children during his life; and, at his death, to be equally and absolutely divided among all his said children, reserving to himself the use of Sheppard and four others, to wait upon him, and, at his death, to be divided with the rest of his estate, as above mentioned; and that he was to be maintained and supported, and to have his debts paid. It was proved, further, that Arthur Jones, the elder, died in April, 1830; and that the trustees, under the said deeds, hired out the slaves, including Sheppard, until the 1st of January, 1831, when they divided all the property of the old man among all his children; and that Sheppard, in the division, was allotted and delivered to the defendant, who was one of the cestui que trusts, under the deeds of the 11th and 15th of August; and that the plaintiff afterwards, but before the commencement of this suit, demanded the said slave of the defendant, who refused to deliver him up.
The plaintiff offered to prove, that, besides the consideration set forth in the deed of gift of the 5th of April, 1827, there was a valuable consideration; but the testimony was objected to by the defendant, and rejected by the court. The plaintiff, then, in explanation of his conduct, as shown on the other side, proved, that when the deed of the 5th of April was executed by his father, there was a parol agreement that the donor should retain the use of the property conveyed, during his life; and that the subscribing witnesses to the deed of gift were requested by the donor to keep it a secret. It was also proved by the plaintiff, that he had lived with his father until within two or three years of his death, as a manager or overseer of his slaves and other property. The plaintiff then offered to prove, that on the day when the deed of the 11th of August was executed, but before its execution, a conversation occurred between him and his father, not in the presence or hearing of the trustees or the other children, but apart, to themselves, wherein his father assured him, that, by becoming a party to the said deed of the 11th, his right under the deed of April, 1827, would not be prejudiced. This testimony was objected to, and rejected. His Honor charged the jury, that as the deed of the 5th of April, 1827, was admitted to be valid, and operated to convey the slave in question to the plaintiff, they would direct their attention to the subsequent deeds of the 11th and 15th of August, 1829; that if those deeds were fairly obtained and freely executed, and the conduct of the plaintiff was such as the testimony seemed to represent, and thereby the parties to these instruments and arrangements were deceived and imposed upon, the jury should find for the defendant; a verdict being returned accordingly, a new trial having been moved for and refused, and a judgment rendered for the defendant, the plaintiff appealed.
Mordecai and J. H. Bryan for the plaintiff: — It is admitted that the deed to the plaintiff was bona fide, and conveyed the title to the property therein mentioned to him. It remains then to be considered, whether, by any act of his, or by any conduct connected with, and accompanying the acts of others, he has done any thing to divest that title. It is insisted that neither the deed of the 11th of August, of itself, or taken in connection with that of the 15th of the same month, has had that effect. As to the deed of the 11th, it appears on its face, and purports to be a mere proposition to divide the property of Arthur Jones, Senr. among his children, and that, only from year to year, during the life of the old man. To constitute a good and valid deed, there must be some consideration, either good or valuable, passing from the grantor to the grantee; and though the plaintiff be a party to this deed, there is no consideration of any kind expressed, nor has any been proved, as moving or including him to make the conveyance. As to the deed of the 15th, the plaintiff is no party to it, and, taken by itself, it cannot affect his interest; and if he were a party, the same objection applies to it, as to that of the 11th, there being no sufficient consideration; and the two deeds do not purport or profess to be parts of one and the same conveyance. That a pecuniary consideration is necessary to a deed of bargain and sale, see 4 Cruise's Dig. 178.
Badger and W. C. Stanly for the defendant: — We shall contend, 1st, that the deed of the 11th of August, taken in connection with the subsequent conduct of the plaintiff, operated to pass the title as his deed. It is said by the plaintiff's counsel, that this deed is without any consideration; but this is not absolutely necessary. In deeds for land, a formal consideration is necessary, on account of the statute of uses; but in gifts of personal estate, a consideration is not necessary. A written instrument may be necessary, because required by statute. Supposing that the deed is without consideration, the plaintiff is a party to it, and he assents to the dispositions therein made. The declaration of his interest only is necessary, and here is a plain one. But this deed is founded upon a full and valuable consideration. The true question is, whether there is not a consideration affecting the plaintiff, and not whether there is one between the children on one side, and the father on the other. Each child covenants to pay Arthur Jones, Senr. c.; there must therefore be a consideration among the children as to each other. There was also a valuable consideration moving to the old man. The title passed, in whomsoever it might be, notwithstanding the words of donation seem to flow from one only of them. No form of words was necessary. The rules affecting real estate do not apply to this case.
It is said, that if these deeds do not operate to convey the title, yet the plaintiff, by being a party to that of the 11th, is estopped to deny the right of Arthur Jones, Senr. It is not a technical legal estoppel. Estoppels are not favoured in law; at least, such as arise from the acts of the parties, because they exclude the truth, and are only admitted for the purpose of repose. Therefore, wherever a deed passes an interest, however small, it cannot operate as an estoppel. 4 Com. Dig. Estoppel, E. (8). Co. Litt. 451, a. Mobley v. Runnels, 3 Dev. Rep. 306. Here an interest does pass by the deed, (provided it can operate at all,) but it is a certain and limited one to the 1st January, 1831; and when it is remembered that at the time of the execution of the deed, under which the plaintiff claims, there was a parol agreement and understanding, that Arthur Jones, Senr. should retain possession of the property during his life, there is nothing in this deed inconsistent with the plaintiff's interest, there being no words of limitation in it. If a man take a lease for years of his own land, by deed indented, the estoppel doth not continue after the term ended; for, by the making of the lease, the estoppel doth grow, and, consequently, by the end of the lease, the estoppel determines. Co. Litt. 47, b.
But it is alleged, that if no legal estoppel be created by that deed, yet the plaintiff, by being present, and assenting to the execution of the deed of the 15th, or not then making known his title, is prevented from afterwards setting it up; in other words, that his conduct operates as a kind of equitable estoppel. It will be remembered that we are now in a court of law, and trying how far these deeds and this conduct will operate, to transfer the legal title of the plaintiff. The subject of dispute is a slave, and our laws recognize only three modes by which this species of property can be conveyed inter vivos. 1st. By a deed of gift, attested by a witness, and regularly proved, c. 2nd. By a bill of sale. 3d. By an actual sale, and delivery of possession. If this doctrine be established, it will operate as a virtual repeal of our acts of assembly. Indeed, it appears to be confined to courts of equity, and is not properly an estoppel, either at law or in equity, but being regarded as a fraud practised upon a party, it affords a ground of application to a court of equity, to compel the party guilty of the fraud, to convey his interest, which he kept concealed when he ought to have disclosed it. Roberts on Frauds, 528. Raw v. Potts, Prec. in Chan. 35. S.C. 2 Vern. 239. Hunsden v. Cheyney, 2 Vern. 150. Meade v. Webb, 1 Bro. P. C. 308. Hanning v. Ferrers, Eq. Ca. Abr. 357. Hobbs v. Norton, 1 Vern. 136. Barret v. Wells, Prec. in Chan. 131, are all cases of relief sought for and obtained in equity upon this ground. And no case can be found, where the silence of the party at the time of the execution of an instrument, conveying property to which he had title, has been held to convey title at law to property, which the law required to pass by deed. Mushat v. Brevard, 4 Dev. Rep. 73. The only case in which this principle has been applied at law, was the sale of a horse, which did not require to be conveyed by deed. Bird v. Benton, 2 Dev. Rep. 179.
It is insisted that this doctrine is founded upon the supposition that the party, by his silence, practises a fraud upon a purchaser, by permitting him to part with his money or property for property to which the vendor had no title, and of which defect of title, he was at the time aware. 1 Fonb. Eq. 163. But it does not and cannot apply as between volunteers, for there no fraud can be practised. Raw v. Potts, 2 Vern. 239. 1 Fonb. Eq. 168. Upon the same principle, it has been held, that a mere naked lie or affirmation, made with intent to deceive, is not sufficient to sustain an action; but it must be shown that the party to whom it is made, has sustained damage by it. Pasley v. Freeman, 3 Term Rep. 51.
This leads to the inquiry, in what position do those claiming under the deeds of the 11th and 15th of August, stand as to the plaintiff? And it is insisted that they are all volunteers. As to that of the 11th, there is as before observed, no consideration, either pecuniary, or of any other kind, expressed or pretended — it is a mere loan or donation. As to that of the 15th, there is no consideration set forth, moving from the trustees — no money paid, or to be paid by them. The only pretence is, that they have undertaken to pay Arthur Jones, Senr.'s debts; but this is to be done out of the property; and, if not paid, the only penalty is, that they shall forfeit their title to the property. They do not profess to be benefitted by the deed, nor do they intend to be charged. Nothing less than a valuable consideration will avail under the stat. 27th Eliz. to overthrow a precedent voluntary deed. Twine's case, 3 Rep. 81. And there is no case to show that even a bona fide conveyance to a trustee, for payment of debts, will have this effect. Roberts on Frauds, 369. The purchaser, to take advantage of this statute against a precedent voluntary conveyance, must be a bona fide purchaser, not in legal, but in vulgar and common intendment. Roberts, 370. 3 Rep. 83, b. 2 And. 233. Medham and Beaumont's case. Newland on Contracts, 405. 4 Cruise's Dig. 382. Marriage is a sufficient consideration to establish a second conveyance, and to render a prior one fraudulent and void, as against such second conveyance. But a conveyance to a man's children, or to his wife after marriage, by way of jointure, will not enable them to avoid a preceding conveyance. Douglas v. Wood, 1 Ch. Ca. 99. 4 Cruise's Dig. 383. The same construction is placed upon our act of 1784, ( Rev. ch. 225, sec. 7,) as on the 27 Eliz. McCree v. Houston, 3 Murph. 429. If they are both voluntary, the first deed conveys the property. Where there are two voluntary conveyances executed, chancery will not relieve the latter against the former, and he who has the legal estate shall hold it. Goodwin v. Goodwin, 1 Chan. Rep. 173. 4 Cruise's Dig. 406.
As to the admissibility of the trustees as witnesses; — wherever a fact is to be proved by a witness, and such fact be favourable to the party calling him, and the witness will derive a certain advantage from establishing the fact in the way proposed, he cannot be heard, whether the benefit be great or small. Marquand v. Webb, 16 Johns. Rep. 89. A witness on the voire dire stated, that the lessor of the plaintiff had formerly assigned to him the premises in question, for a temporary purpose, that he had given up the deed to the lessor of the plaintiff, and had never had possession of the premises; held that the witness was incompetent, on the ground of interest. Den ex dem. Scales v. Bragg, 21 Eng. Com. Law Reps. 388.
The evidence of the conversation between the plaintiff and his father was improperly rejected, it not being a mere naked declaration, but part of the res gestae, the inducement operating upon him to sign the deed.
The plaintiff should have been permitted to show that the deed of gift to him was founded upon a valuable consideration, although nothing but a good consideration was expressed therein. If the trustees were purchasers for value, then against them it was necessary for the plaintiff to show, that his deed was not merely voluntary, and therefore fraudulent in law against such a purchaser. Claywell v. McGimpsey, 4 Dev. Rep. 89. To rebut this imputed fraud, he should have been permitted to show that his deed was fortified by a valuable consideration. Sugden on Vendors, 473.
2d. But the deed of the 15th of August settles the question between the defendant and plaintiff. That is founded upon a good and valuable consideration. A pecuniary consideration is not necessary — any other valuable consideration will answer. Here there was an adequate valuable consideration flowing from the trustees. The plaintiff's counsel contend, that as the debts were to be paid out of the property, there could be no consideration; but the covenants on the part of the trustees were personal covenants, and bound them to pay the debts, whether the property was sufficient or not. They were bound at all events. The construction that the trustees, by not paying the debts, would only forfeit their estate under the deed, will not hold. A condition is always for the benefit of the grantor, and not of the grantee; and Arthur Jones, Senr. could, upon their refusal to pay, have recovered of them. A question arises, can the trustees be purchasers, to set aside a previous voluntary deed? Nunn v. Wilsmore, 8 Term Rep. 521. If they sustain the character of real and bona fide purchasers, they may set aside the previous donation. McCree v. Houston, 3 Murph. 429.
3d. It is further contended, that the plaintiff is estopped to set up his title. The plaintiff's counsel contend that estoppels are odious. They are not odious, except in particular cases of technical estoppels. Wherever one man stands by, and permits others to deal, upon the supposition of a particular state of facts, he shall not set up his interest to disturb any arrangement, founded upon such a supposition of facts. Such estoppels are not odious, but highly favoured. They are intended to favour truth and justice, and to operate against bad men and fraudulent conduct. Personal property may be disposed of here, without a deed. If one agrees, in consideration that another will pay his debts, he shall have a particular slave, and delivers such slave, the sale is good. Such is the case here. The trustees stipulate for the payment of old Arthur Jones's debts; the plaintiff stands by, and permits the old man to sell the slave; he must be bound, and there will be a valid transfer of the slave. But if the plaintiff is not estopped as to the trustees, he must be in respect to the other children, who are parties in the division. One child cannot assert his title to property, disposed of by a parent among his children, to which they have all assented, because he could not do so, without its being a fraud upon the rest. In cases of this kind, resort must be had to equity, where real estate is concerned, because that cannot pass without a deed; but this rule cannot apply to personal property, to the transfer of which no deed is necessary. All the cases on this subject referred to by the plaintiff's counsel, were cases concerning real estate.
As to the admissibility of the trustees as witnesses; the being a trustee does not exclude a man from being a witness. He must be interested in the cause.
The private conversation between the plaintiff and his father, not in the presence of the trustees or the other children, was certainly inadmissible.
— Our duty is to ascertain and pronounce, whether the instruction complained of be in law erroneous. If it be, the judgment must be reversed. In discharging this duty, we must not permit our understanding to be in the least swayed by the equity or hardship of the case. Whatever these may be, must be left to the decision of the tribunal to which the country has given jurisdiction of such matters. The security of all requires, that in a court of law whatever the law prescribes, should be sacredly observed.
To uphold the construction complained of, it must be shown that by force of one or the other or both of these deeds, or by the legal effect of the conduct of the plaintiff, or by the combined operation of these instruments and this conduct, the plaintiff has lost his property in the slave sued for, which cannot be, unless he has thereby transferred it to some other. The construction therefore necessarily holds, that the plaintiff has transferred his slave. We feel ourselves obliged to declare, that in this respect it is erroneous.
The negro in dispute is not conveyed nor attempted to be conveyed in either of the deeds by name. If comprehended within them, it must be because he is included within the general words used by Arthur Jones the elder, "my estate," or "my property," or, "all the property I possess." We hold it clear, that these general words do not pass or purport to pass anything which was not held by the grantor as his own property. We cannot understand them as applying to the property of others, in the occupancy of the grantor. It is indispensable, therefore, before any operation upon this slave can be ascribed to these instruments, that it shall appear that the slave was then held by the grantor as his property, and was not held as the property, and by permission of the plaintiff. The law always presumes that every possession is consistent with right. If the negro was then the property of the plaintiff, retained by his father under agreement with the plaintiff, it was held as the property of the plaintiff. If there was evidence tending to establish the fact, that although the slave was then in truth, and to the knowledge of the father, the property of the plaintiff, he was nevertheless held adversely to the plaintiff, and as his own property, (on which point we forbear to venture an opinion,) still the Court could not assume such to be the fact, and upon the faith of that fact declare the slave included within this general description.
It is strenuously urged, however, that the plaintiff was concluded, and estopped by his deceitful concealment and misrepresentation of the ownership of the property conveyed by his deed, from setting up any claim under that deed, to the injury of those whom he thus deceived and imposed upon. It is conceded, that this exclusion or bar is not strictly a legal estoppel, for usually no man is estopped by any oral admission, or even any written admission not of record or under seal. But it is insisted, that upon the principles of good faith, a man ought not to be allowed to repudiate his own representations made to influence the conduct of others, whereby he has derived any advantage, or they have been induced either to part with their property, or to forego a benefit, or incur an onerous responsibility. And it is contended, that upon this principle has been established a species of equitable estoppel, which renders such representations, when thus acted upon, conclusive evidence of the truth of the facts so represented. Distrusting my ability to free this doctrine of quasi estoppels from the perplexities which involve it, I shall not undertake to define its extent. I shall content myself with saying, that so far as equitable estoppels have been definitively recognised as rules of law, this Court will unhesitatingly and cheerfully so respect them. But it cannot but apprehend, that they have sometimes been incautiously admitted in Courts of law, from a solicitude to advance the justice of a particular case, although from the nature of their jurisdiction, and the inflexible forms of proceeding, these Courts were not competent to the exact administration of equity. Thus it has happened, that legal certainty has been prejudiced, without the compensating advantages of effecting complete justice. All estoppels — whether estoppels at common law, or these equitable estoppels — are founded upon the great principles of morality and public policy. Their purpose is to prevent that which deals in duplicity and inconsistency, and to establish some evidence as so conclusive a test of truth, that it shall not be gainsaid. But as the effect of an estoppel may be to shut out the real truth, by its artificial representative, estoppels, whether legal or equitable, are not to be extended by construction. In legal phrase, they are not favoured. No man is to be precluded from showing the truth of his claim or defence, unless it be forbidden by a positive rule of law. And especially should that rule be unequivocal, which sets up unsolemn acts or declarations, supposed to be ascertained through uncertain, defective, erring, or fallacious testimony, as an absolute bar to all further investigation. It is, in general, more safe, instead of annexing an arbitrary effect to such acts and declarations, to leave them to the jury as evidence of whatever inferences of fact can thence be fairly deduced. Fraud, indeed, will not thus be always defeated; but he who is thereby injured, can obtain remuneration in damages for the wrong sustained, from a Court of law; and he who is threatened with injury will find protection against the wrong meditated from a Court of equity, which, in the exercise of its appropriate jurisdiction, converts the fraudulent agent into a trustee.
We believe there is no rule of law which shuts out the plaintiff in this case from insisting on the truth of his claim, notwithstanding his former misrepresentations. The defendant, who may thus be disappointed, has not been deprived by these misrepresentations of what was before his; and the plaintiff, through the means of these misrepresentations, is not shown to have gained anything. The plaintiff stands upon his deed. The defendant has no claim upon the property as a purchaser. It is argued here, and so it was held below, that the instrument of the 15th August was executed for a valuable consideration. If it were so, we do not see how the estoppel would be helped thereby, until it is first shown that the thing in dispute is contained in that deed. The covenants of the trustees in that instrument are said to constitute a consideration of value; they are the consideration, however, only for the things thereby conveyed. But the consideration of value required to bring a case within the range of an equitable estoppel, is not such a consideration as might be sufficient to raise an use, or to give technical operation to a deed of bargain and sale. But one which makes him from whom it moves a purchaser in effect — shows that he has substantially bought what is transferred. It is not alleged that these trustees have paid or are liable to pay anything out of their own pockets because of this transaction — that they have advanced anything as the price of the conveyance, or that they will sustain any loss in case the conveyance should be partially defeated. But besides these objections, to hold that the plaintiff has by his representations or misrepresentations express or tacit transferred the slave in question, would be to violate the positive law of the state. There is no consideration moving to him for the pretended transfer — as to him then it is a gift. The act of 1806, declaring what gifts of slaves shall be valid, peremptorily declares, that no gift thereafter to be made of any slave, shall be good or available, either at law or in equity, unless the same shall be made in writing signed by the donor, attested by at least one credible witness, and registered as conveyances of land. The law cannot permit that an estoppel should be set up to defeat the law. Mytton v. Gilbert, 2 Term, 169.
We think there was also error in rejecting the testimony offered, that on the day of the execution, and before the execution of the instrument of the 11th of August, a conversation occurred between the plaintiff and his father, in which the latter assured him, that by becoming a party thereto, his right under the deed of gift would not be prejudiced. If it is sought to divest the plaintiff of his property by reason of his deceitful conduct, he ought to be permitted to show any circumstances attending the transaction, which may tend to prove that he was himself misled. Such evidence, too, if believed, shows the character in which the father held the property embraced in that deed.
We hold that there was no error in rejecting the testimony offered by the plaintiff to show a different consideration for his deed of gift, than that therein mentioned, nor in admitting the trustees to testify as witnesses for the defendant. The general rule with respect to averring and showing a consideration, we understand to be, that where a specific consideration is named in the conveyance, and none others referred to in general terms, that must be regarded as the sole consideration, and negatives any other: that where a consideration is specified and others referred to in general terms, it is competent to show these forth by evidence; and that when a deed is wholly silent as to the consideration, proof of the actual consideration is admissible. We see no reason for not applying the general rule to this case. We hold the witnesses competent, because it does not appear that they or any of them had a direct interest in the event of the suit.
The judgment is reversed, and a new trial must be awarded below.
PER CURIAM. Judgment reversed.